Thursday, October 20, 2005

Last Wednesday, October 12, I debated fellow law professor, Adam Mossoff, on whether we have natural rights to copyrights and patents. We squared off in Indianapolis, Indiana, at an event co-hosted by the Intellectual Property Practice Group and the Indianapolis Lawyers Chapter of the Federalist Society. They titled our debate, "Life, Liberty, and Intellectual Property." Yet another (and I could name more!) pro-property rights, IP-geek, law prof, Mark Schultz, moderated.

Though very lightly attended, the event proved great fun toward a worthy end. The Federalist Society has arranged to have a transcript of the debate published in an upcoming issue of the Journal of Technology Law and Policy. That transcript will presumably include the points that Adam and I ad libbed during the Q&A session that followed our talk. On this blog, I'll offer a lower calorie (because less heated!) version, excerpted from my initial comments. To make it less filling, moreover, I'll break my comments into two easily digestible parts. Herewith the first installment:

Introduction

. . . I come before you as a friend of property rights. I moreover regard property rights as natural rights—not as merely the inventions of social engineers. Yet I regard copyrights and patents as no more than necessary evils, at best. Why? . . .

. . . I regard copyrights and patents skeptically because I hold our natural, customary, common law rights to tangible property in such high regard. To call copyrights and patents "property" risks diluting that term. Under so lax a definition, we might end up characterizing taxicab medallions or welfare benefits as property rights, too!

In that event, the meaning of "property"—and of our property rights—would have precious little meaning at all. We would find our natural rights to our persons and chattels transgressed on all sides, whittled away to satisfy a host of unnatural, artificial, statutory rights.

Allow me to explain. I'll briefly relate the consensus view of copyrights and patents, which regards them as statutory remedies to a looming market failure. I'll then explain why friends of natural property rights should regard copyrights and patents as no better than necessary evils.

The Consensus View

. . .

. . . [C]opyrights and patents differ crucially from tangible property. They are non-rivalrous in consumption. If I sing your copyrighted song or build your patented machine, I in no way interfere with your use and enjoyment of your creations. You can still sing your song or build your machine, too.

In contrast, we cannot simultaneously use and enjoy the same real or chattel property. If I build on your land or eat your apple, you cannot do the same. Such tangible goods are rivalrous in consumption.

Insofar as the law limits free access to copyrights and patents, it imposes a deadweight social cost on us all—the lost opportunity to enjoy the free and universal use of expressions and inventions. Why, then, does the law impose such limits? Not in defense of natural rights. No natural rights to copyrights and patents exist.

The law limits access to copyrights and patents to forestall a market failure. In addition to being non-rivalrous in consumption, copyrights and patents differ from tangible property in yet another, crucial way: Authors and inventors find it relatively difficult to prevent the unauthorized use of their creations. They thus fear that they will not recoup their production costs without a statutory right to limit the unauthorized use of their expressions and inventions. Hence the utilitarian justification for granting copyright and patent protection.

". . . [C]opyrights and patents differ crucially from tangible property. They are non-rivalrous in consumption. If I sing your copyrighted song or build your patented machine, I in no way interfere with your use and enjoyment of your creations. You can still sing your song or build your machine, too.

"In contrast, we cannot simultaneously use and enjoy the same real or chattel property. If I build on your land or eat your apple, you cannot do the same. Such tangible goods are rivalrous in consumption."

Most real property is big enough for two people to stand on, or for one person to mine and another to cultivate. This distinction between real and intellectual property seems suspiciously tendentious.

murky thoughts: Are philosophers of law allowed to look for rights outside the constitution?

Sure, unless all legal inquiry terminates decisively at the prescriptions of the Constitution. You might think that it obviously does (or ought); but obvious or not, it is a substantive position within the philosophy of law, which needs a reasoned defense. The final authority of the Constitution is not unquestionable, and in any case it's both contingent and parochial (we could have had different small-c constitutions, and other people do have them). If you want to argue that in our territory, as things actually turned out, the Constitution is decisive on all legal questions on which it speaks (and maybe even some on which it does not), then you can argue that, but you will need just that--an argument. And the reasons given in the course of the argument would themselves be reasons within the province of the philosophy of law. (As you may have guessed by this point, they should not be reasons taken from within the text of the Constitution itself, since the authority of the Constitution is precisely what's in question; you can't just cite the Supremacy Clause without begging the question in a particularly crass manner.)

murky thoughts: Isn't Article 1 the end of the story about why we have intellectual property rights?

No. If you do take the text of the Constitution to be decisive on legal questions within its scope then that at most only authorizes Congress to devise intellectual protectionism schemes; it doesn't mandate any particular scheme, or any scheme at all, and it doesn't recognize a "right" that the government or anyone else is bound to respect. You can have plenty of arguments over whether Congress ought to make use of the power that it is granted, and whether it ought to make use of it in this way or that.

If, on the other hand, you don't take the Constitution to be decisive in any final way, then the text of Article I has no special authority to settle the matter anyway. (This happens to be my view; Bell is right to suggest that intellectual protectionism may undermine property rights in ordinary tangible property, and as a very famous lawyer once argued, "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." Constitutions are not prior to natural rights, and have no proper authority outside of recognizing and protecting them.)

You can try to overthrow the government on the basis of what you think constitutes natural law, but you're liable to be jailed and/or killed. If what you think constitutes natural law is so natural and obvious, then I think the more prudent tactic would be to have it amended into the Constitution, for which you only need a 2/3 majority of votes in Congress (am I remembering my civics right?). Ought to be a piece of cake for a natural law.